GJR/DA

667-82153

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

----------- --------------------------- ------ ---------------- ------- - - )(

DRIAN SCHOOLCRAFT,

Plaintiff,

-against-

THE CITY OF NEW YORK, DEPUTY CHIEFMICHAEL MARINO, Tax Id. 873220, Individuallyand in his Official Capacity, ASSISTANT CHIEFPATROL BOROUGH BROOKLYN NORTHGERALD NELSON, Tax Id. 912370, Individually andin his Official Capacity, DEPUTY INSPECTORSTEVEN MAURIELLO, Tax Id. 895117, Individuallyand in his Official Capacity CAPTAIN THEODORE

LAUTERBORN, Tax Id. 897840, Individually and inhis Official Capacity, LIEUTENANT JOSEPH GOFF,Tax Id. 894025, Individually and in his OfficialCapacity, SGT. FREDERICK SAWYER, Shield No.2576, Individually and in his Official Capacity,SERGEANT KURT DUNCAN, Shield No. 2483,Individually and in his Official Capacity,LIEUTENANT CHRISTOPHER BROSCHART, Tax

Id. 915354, Individually and in his Official Capacity,LIEUTENANT TIMOTHY CAUGHEY, Tax Id.885374, Individually and in his Official Capacity,SERGEANT SHANTEL JAMES, Shield No. 3004,AND P.O.'s "JOHN DOE" #1-50, Individually and intheir Official Capacity (the name John Doe beingfictitious, as the true names are presently unknown)(collectively referred to as "NYlD defendants"),JAMAICA HOSPITAL MEDICAL CENTER, DR.

ISAK ISAKOV, Individually and in his OfficialCapacity, DR. LILIAN ALDANA-BERNIER,Individually and in her Official Capacity andJAMAICA HOSPITAL MEDICAL CENTEREMPLOYEE'S "JOHN DOE" # 1-50, Individually andin their Official Capacity (the name John Doe beingfictitious, as the true names are presently unknown),

10 CIV 6005 (RWS)

Defendants.

---- ---- --- --- -------------------- ----------------- ------- ----------- )(

MEMORANDUM OF LAWIN SUPPORT OF MOTION TO DISMISS

BY DEFENDANT JAMAICA HOSPITAL MEDICAL CENTER

Of Counsel: Gregory J. Radomisli (2670)

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Dockets.Justia.com

TABLE OF CONTENTS

ABLE OF AUTHORITIES ........................................................................................................ iii

RELIMINARY STATEMENT .................................................................................................. 1

ROCEDURAL HISTORY ......................................................................................................... 1

LAINTIFF'S AMENDED COMPLAINT ................................................................................. 1

RGUMENT................................................................................................................................2

POINT I

PLAINTIFF CANNOT MAINTAIN CLAIMSAGAINST JAMAICA HOSPITAL BASED UPONTHE DOCTRINE OF RESPONDEAT SUPERIOR ......................................................... 2

POINT II

PLAINTIFF CANNOT MAINTAIN CLAIMS FORCIVIL RIGHTS VIOLATIONS AGAINST JAMAICAHOSPITAL BECAUSE IT IS NOT A STATE ACTOR ....... ...................... ..... ........ ....... 4

1. General Principles for Liability Under § 1983 .................... ....... ...... ......... 4

A. Defendants' actions do not pass the statecompulsion test............... .'............................................................. 6

B. Defendants' actions do not pass the public

function test.. ................................................................................ 7

C. Plaintiffs Amended Complaint does not sufficiently

plead joint action/close nexus....................................................... 8

2. General Principles for Failure to State a Cause

of Action...................................................................................................9

3. Plaintiffs Allegations Are Insufficient UnderIqbal and Twombly ................................................................................... 10

POINT III

THE COURT SHOULD DECLINE TO E2CERCISESUPPLEMENTAL JURISDICTION OVERPLAINTIFF'S STATE LAW CLAIM ............................................................................. 14

ONCLUSION .......... ...................... .......... ..... ......... ................................. ................ ........ ........... 15

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TABLE OF AUTHORITIESasesmerican Mfrs. Mut. Ins. Co. v. Sullivan,526 U.S. 40, 119 S.Ct. 977 (1999) ..............................................................................................5

mo/a v. Bronx-Lebanon Hosp. Ctr.,2006 WL 3316278 (S.D.N.Y. 2006) ...........................................................................................5

shcroft v. Iqbal,_U.S. _' 129 S.Ct. 1937 (2009) ...............................................................................................9

aylis v. Marriott Corp.,843 F.2d 658 (2d Cir. 1988).......................................................................................................14

ell Atlantic Corp. v. Twombly,550 U.S. 544, 127 S.Ct. 1955 (2007) ....................................................................................9, 10

lum v. Yaretsky,457 U.S. 991, 102 S.Ct. 2777 (1982) ......................................................................................6, 8

odek v. Bunis,2007 WL 1526423 (W.D.N.Y. 2007)..................................................................................11, 12

rentwood A cad. v. Tenn. Secondary Sch. Ath. Ass 'n,531 U.S. 288 (2001) ....................................................................................................................6

iambriello v. County o/Nassau,292 F.3d 307 (2d Cir. 2002) ............................................................................................5, 11, 12

ahlberg v. Becker,748 F.2d 85 (2d Cir. 1984) ........................................................................................................12

oe v. Harrison,254 F.Supp.2d 338 (S.D.N.Y. 2003) ...................................................................................5, 7, 8

ove v. City o/New York,2005 U.S.Dist.LE)(IS 22178 (S.D.N.Y. 2005) .......................................................................3, 4

ove v. Fordham University,56 F.Supp.2d 330 (S.D.N.Y. 1999) .............................................................................................4

ares v. New York,985 F.2d 94 (2d Cir. 1993) ........................................................................................................11

isk v. Letterman,401 F.Supp.2d 362 (S.D.N.Y. 2005) .....................................................................................3, 11

lagg Bros., Inc. v. Brooks,436 U.S. 149,98 S.Ct. 1729 (1978) ............................................................................................4

orbe's v. City o/New York,2008 WL 3539936 (S.D.N.Y. 2008) .........................................................................................13

arcia v. Senkowski,919 F.Supp. 609 (N.D.N.Y. 1996). .............................................................................................3

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insberg v. Healey Car & Truck Leasing, Inc.,198 F.3d 268 (2d Cir. 1999) ......................................................................................................13

arvey v. Harvey,949 F.2d 1127 (lIth Cir. 1992)...................................................................................................8

ackson v. Metropolitan Edison Co.,419 U.S. 345,95 S.Ct. 449 (1974) ....................................................................................7, 8, 11

ohns v. Home Depot u.s.A., Inc.,221 F.R.D. 400 (S.D.N.Y. 2004)...............................................................................................12

ohnson v. Columbia University,2003 U.S.Dist.LE)(IS 20932 (S.D.N.Y. 2003) .......................................................................3, 8

outhe v. City of New York,2009 WL 701110 (E.D.N.Y. 2009) .............................................................................................3

olari v. New York Presbyterian Hospital,455 F.3d 118 (2d Cir. 2006) ......................................................................................................14

oulkina v. City of New York,559 F.Supp.2d 300 (S.D.N.Y. 2008) ...................................................................................10, 11

ewis v. Krymkevich,2009 U.S.Dist.LEXIS 117713 (S.D.N.Y. 2009) .......................................................................11

uciano v. City of New York,684 F.Supp.2d 417 (S.D.N.Y. 2010) .....................................................................................9, 14

elnitzky v. HSBC Bank USA,2007 WL1159639 (S.D.N.Y. 2007) ..........................................................................................14

iddleton v. City of New York,2006 WL 1720400 (E.D.N.Y. 2006) .........................................................................................12

orse v. University of Vermont.,973 F.2d 122 (2d Cir. 1992) ......................................................................................................14

kunieff v. Rosenberg,996 F.Supp. 343 (S.D.N.Y. 1998) .......................................................................................5,6,8

kunieff v. Rosenberg,166 F.3d 507 (2d Cir. 1999) ........................................................................................................6

itchell v. Callan,13 F.3d 545 (2d Cir. 1994) ..........................................................................................................4

ollack v. Nash,58 F.Supp.2d294 (S.D.N.Y. 1999)...........................................................................................11

ichardson v. Goord,347 F.3d 431 (2d Cir. 2003) ........................................................................................................2

igano v. County of Sullivan,2007 WL1133280 (S.D.N.Y. 2007) ..........................................................................................14

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asscer v. Barrios-Paoli,2008 WL 5215466 (S.D.N.Y. 2008) .........................................................................................11

ipear v. Town of West Hartford,

954 F.2d 63 (2d Cir. 1992) ..........................................................................................................8

ipencer v. Lee,864 F.2d 1376 (7th Cir. 1989).....................................................................................................7

'Ybalski v. Independent Group Home Living Program Inc.,2008 WL 4570642 (2nd Cir. 2008) ..........................................................................................6, 8

'homas v. Roach,165 F.3d 137 (2d Cir. 1999) ........................................................................................................4

ops Markets, Inc. v. Quality Markets, Inc.,142 F.3d 90 (2d Cir.1998) ...................................................................................................14, 15

alez v. City of New York,2008 WL 5329974 (S.D.N.Y. 2008) ...................................................................................12, 13

azquez v. Combs,2004 WL 2404224 (S.D.N.Y. 2004) .........................................................................................13

eloz v. New York,339 F.Supp.2d 505 (S.D.N.Y. 2004) .......................................................................................2-3

ulesule 12...............................................................................................................................1,3, 9, 12

ule 8...........................................................................................................................................1,9

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PRELIMINARY STATEMENT

This Memorandum of Law is respectfully submitted on behalf of defendant JAMAICA

HOSPITAL MEDICAL CENTER in support of its motion for an Order dismissing plaintiffs

Complaint pursuant to Rules 8(a)(2), 12(b)(1), 12(b)(6) and 12(c) of the Federal Rules of Civil

Procedure because plaintiff cannot maintain this action against the moving defendant based upon

the doctrine of respondeat superior; or in the alternative, because the moving defendant was not

a state actor acting under color of law; declining to exercise supplemental jurisdiction over

plaintiffs State law claims, and such other and further relief as this Court deems just and proper.

PROCEDURAL mSTORY

Plaintiff filed a Summons and Complaint in the United States District Court, Southern

District of New York, on or about August 10,2010 (Exhibit "A"). Issue was joined by service

and filing of a Verified Answer on behalf of defendant JAMAICA HOSPITAL MEDICAL

CENTER ("Jamaica Hospital") on September 7, 2010 (Exhibit "B"). On or about September 12,

2010, plaintiff filed an Amended Summons and Complaint (Exhibit "C"). On October 6, 2010,

Jamaica Hospital filed a Verified Answer to the Amended Complaint (Exhibit "D").

PLAINTIFF'S AMENDED COMPLAINT

In his Amended Complaint, plaintiff claims that several codefendant New York City

Police Officers ("the City defendants") unlawfully entered his home, forcibly removed him in

handcuffs, seized his personal affects and "had him admitted to Jamaica Hospital against his will,

under false and perjurious information that plaintiff was 'emotionally disturbed'" (i¡2, Exhibit

"C"). Plaintiff alleges that the codefendant police officers "conspired with Jamaica Hospital

Center personnel to have plaintiff involuntarily committed in its psychiatric ward" for 6 days in

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an effort "to tarnish plaintiff s reputation" and to undermine his claims that there was widespread

corruption in the New York City Police Department ("NYlD") (i¡2, Exhibit "C").

Plaintiffs Amended Complaint asserts 10 claims for relief under Federal law and 8

claims for relief under State law. Of the 10 claims for relief under Federal law, the Seventh,

Eighth and Ninth Claims are specifically addressed to Jamaica Hospital (i¡i¡270-284, Exhibit

"C,,).1 Specifically, plaintiff alleges that the Jamaica Hospital physicians violated plaintiffs civil

rights pursuant to 42 U.S.C. §1983 by involuntarily hospitalizing him in violation of New York

Mental Hygiene Law §9.39, thereby depriving plaintiff of his substantive and procedural due

process rights as set forth in the 5th and 14th Amendments of the Constitution (i¡270-276, Exhibit

"C"); conspired with the NYlD to violate plaintiffs civil rights pursuant to 42 U.S.C. §1983

(i¡i¡277-282, Exhibit "C"); and violated his rights to due process pursuant to 42 U.S.C. §1983 by

involuntarily hospitalizing him without notice, hearing or an opportunity to be heard or to

challenge his confinement, in violation of the 5th and 14th Amendments of the Constitution

(i¡i¡283-284, Exhibit "C").

ARGUMENT

POINT I

PLAINTIFF CANNOT MAINTAIN FEDERAL CLAIMS AGAINST JAMAICAHOSPITAL BASED UPON THE DOCTRINE OF RESPONDEAT SUPERIOR

Plaintiffs Federal claims should be dismissed against Jamaica Hospital at the outset

because the doctrine of respondeat superior is inapplicable to § 1983 claims. See Richardson v.

Goord, 347 F.3d 431, 435 (2d Cir. 2003); Veloz v. New York, 339 F.Supp.2d 505,519 (S.D.N.Y.

To the extent that plaintiff may argue that the first through sixth claims for relief also apply toJamaica Hospital notwithstanding the language which implies that they are more properly directed againstthe City defendants, those claims should be dismissed for the same reasons the seventh through ninth

claims should be dismissed, as discussed herein. Plaintiffs tenth claim for relief pertains to the City

defendants only.

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2004); Garcia v. Senkowski, 919 F.Supp. 609, 616 (N.D.N.Y. 1996). It is well-settled law "that

private employers are not liable under (§JI983 for the constitutional torts of their employees

unless the plaintiff proves that action pursuant to official policy of some nature caused the

constitutional tort." Jouthe v. City of New York, 2009 WL 701110 at *18 (E.D.N.Y. 2009)

(citation omitted); see also Johnson v. Columbia University, 2003 U.S.Dist.LE)(IS 20932 at *7

(S.D.N.Y. 2003) (a private employer will not be liable for the constitutional torts of its

employees under the doctrine of respondeat superior in actions brought pursuant to 42 USC

1983). Even if the codefendant attending psychiatrists were considered Jamaica Hospital

employees for the purposes of this motion, plaintiff has not alleged that they (or any other

Jamaica Hospital staff members) acted pursuant to an official policy to deprive the plaintiff of

his civil rights. Accordingly, plaintiff cannot maintain a § 1983 claim against Jamaica HospitaL.

In Jouthe v. City of New York, the Court dismissed the Complaint against Long Island

Jewish Hospital because plaintiffs did not allege that the Hospital maintained an unconstitutional

policy under which one of the named defendants acted to deprive plaintiff of a constitutional

right. In Johnson v. Columbia University, the Court dismissed the Complaint against Columbia

University pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure because plaintiff

had not alleged that Columbia had a policy, pattern or practice that caused the alleged injury.

See also Fisk v. Letterman, 401 F.Supp.2d 362 (S.D.N.Y. 2005) (dismissing §1983 claim against

corporate defendants where plaintiff failed to allege a policy of violating individuals' civil

rights). Similarly, the plaintiff herein does not make that allegation.

The Court's discussion of vicarious liability in the context of involuntary hospitalization

in Dove v. City of New York, 2005 U.S.Dist.LE)(IS 22178 (S.D.N.Y. 2005) is instructive. In that

case, the plaintiff claimed that his civil rights were violated when he was' involuntarily

hospitalized under the Mental Hygiene Law. Plaintiff alleged that various private entities

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conspired with the personnel at various state hospitals to have him committed as "punishment"

for his having filed a complaint against one of the defendants. Dove at *4. The private

defendants moved to dismiss the case. The Court noted that Section 1983 imposes liability on

defendants who personally deprive someone of a federal right or who personally causes such a

deprivation to occur. Dove at *8, citing Dove v. Fordham University, 56 F.Supp.2d 330, 336

(S.D.N.Y. 1999), aff'd sub nom. Dove v. Fordham University, 210 F.3d 354 (2d Cir. 2000). The

Court stated that it is "equally established that liability under Section 1983 may not be predicated

on a theory of respondeat superior or vicarious liability." Dove at *8, citing Dove v. Fordham

University, 56 F.Supp.2d 330, 336 (S.D.N.Y. 1999), aff'd sub nom. Dove v. O'Hare, 210 F.3d

354 (2d Cir. 2000). Acco:rdingly, plaintiff cannot maintain a §1983 claim against Jamaica

HospitaL.

POINT II

PLAINTIFF CANNOT MAINTAIN CL~IMS FOR CIVIL RIGHTS VIOLATIONSAGAINST JAMAICA HOSPITAL BECAUSE IT IS NOT A STATE ACTOR

In paragraph 13 of his Amended Complaint, plaintiff alleges that Jamaica Hospital is a

"privately owned hospital" (i¡13, Exhibit "C"). In its Answer, Jamaica Hospital did not deny that

allegation and, consequently, admitted it (Exhibit "B").

1. General Principles for Liability Under § 1983

Section 1983 does not create substantive rights, but provides a "procedure of redress for

the deprivation of rights established elsewhere." Thomas v. Roach, 165 F.3d 137, 142 (2d Cir.

1999). In order to succeed on a cause of action under § 1983, a plaintiff must prove 1) that the

defendant was acting under color of state law and 2) that such conduct deprived the plaintiff of a

right, privilege or immunity guaranteed by the federal constitution or federal law. Flagg Bros.,

Inc. v. Brooks, 436 U.S. 149, 155,98 S.Ct. 1729 (1978); see also Pitchell v. Callan, 13 F.3d 545,

547 (2d Cir. 1994). Because the U.S. Constitution does not regulate private parties, a plaintiff1506416JDOC 4

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claiming his constitutional rights have been violated must first establish that the challenged

conduct constitutes state action. Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir.

2002). To state a claim under §1983, then, a plaintiff must allege that he was injured by either a

state actor or a private party acting under color of state law. Id. An act that is not performed

under color of law (i.e., merely private conduct) is not a violation of §1983 "no matter how

discriminatory or wrongful" the act may be. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.

40, 119 S.Ct. 977 (1999). Plaintiff concedes in his Complaint that Jamaica Hospital is a private

institution, and never alleges that Jamaica Hospital acted under color oflaw (See Exhibit "C").

Generally, a private hospital and its employees are not considered state actors for §1983

purposes. See Amofa v. Bronx-Lebanon Hosp. Ctr., 2006 WL 3316278 at *4 (S.D.N.Y. 2006);

see also Okunieffv. Rosenberg, 996 F.Supp. 343 (S.D.N.Y. 1998), aff'd 166 F3d 507 (2d Cir.

1999) (§ 1 ~83 claims cannot be brought against a private hospital or private physicians based

upon a patient's involuntary hospitalization pursuant to the Mental Hygiene Law); Doe v.

Harrison, 254 F.Supp.2d 338 (S.D.N.Y. 2003) .

Accordingly, unless plaintiff demonstrates state action, plaintiff cannot state a claim

against Jamaica Hospital for violation of his constitutional rights for "unlawfully and

involuntarily (confining) plaintiff' to Jamaica Hospital without his consent or "any lawful basis"

(i¡272, Exhibit "C"); for violating Section 9.39 of the Mental Hygiene Law by allegedly failing to

perform the necessary tests to determine if the plaintiff warranted hospitalization (i¡273, Exhibit

"C"); for involuntarily hospitalizing the plaintiff "without justification" in violation of his

constitutional rights (i¡274, Exhibit "C"); or for depriving him of his liberty, and/or his

substantive and procedural due process rights (i¡i¡275, 276 and 282, Exhibit "C"). Consequently,

plaintiffs claims that the Jamaica Hospital staff violated his civil rights must be dismissed. See

OkuniejJ, supra.

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Under certain circumstances, however, the actions of a private entity can be attributable

to the state such that state action is imputed to the private party, which can then subject the

private party to liability under 42 USC 1983. Those circumstances exist when 1) the entity acts

pursuant to the "coercive power" of the state, or is "controlled" by the state ("the compulsion

test"); 2) when the state provides "significant encouragement" to the entity, the entity is a

"willful participant in joint activity with the (s)tate," or the entity's functions are "entwined"

with state policies ("the joint action" or "close nexus" test); or 3) when the entity "has been

delegated a public function by the (sJtate" (the "public function" test). Sybalski v. Independent

Group Home Living Program Inc., 2008 WL 4570642 (2nd Cir. 2008), *2, citing Brentwood

Acad. v. Tenn. Secondary Sch. Ath. Ass'n, 531 U.S. 288, 296 (2001) (citations and internal

quotation marks omitted); Okuniejf, 996 F.Supp. at 348. Significantly, the United States Court

of Appeals for the Second Circuit has already held that under all three of those tests, involuntary

hospitalization by a private party, as in this case, does not convert private conduct into state

action for purposes of section 1983. See Okunieff v. Rosenberg, 166 F.3d 507 (2d Cir. 1999).

A. Defendants' actions do not pass the state compulsion test

Under the state compulsion test, a state can be held responsible for a private decision

"only when it has exercised coercive power or provided such significant encouragement, overt or

covert, that the choice must in law be deemed to be that of the State." Blum v. Yaretsky,457

U.S. 991, 1004, 102 S.Ct. 2777 (1982). In Blum, private nursing home officials discontinued

plaintiffs' Medicaid benefits because plaintiffs refused a transfer to another health care facility.

The Court found that the extensive New York State Social Service regulations did not

demonstrate that the State was responsible for the decision to discharge or transfer patients;

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instead, those decisions ultimately turned on medical judgments made by private physicians

according to professional standards not established by the State. Id. at 1008-09. Accordingly, the

Court held that the decision to transfer Medicaid patients to lower levels of care did not

constitute state action under Section 1983. Id. at 1012. As stated in Doe v. Harrison, 254

F.Supp.2d 338, 341 (S.D.N.Y. 2003), state action through state compulsion "requires actual

coercion by a state actor that impacts upon the private physician's decision-making."

According to the Aniended Complaint, plaintiff alleges that the codefendant NYlD

officers who transported the plaintiff to Jamaica Hospital "convinced" doctors to have him

involuntarily hospitalized by making "false" statements (i¡i¡165-170, Exhibit "C"). Similarly, in

i¡200, plaintiff alleges that the NYlD officers falsified evidence and submitted it to the Jamaica

Hospital staff "in an effort to silence, intimidate, threaten or otherwise deem plaintiff incredible

should the evidence of corruption and misconduct within plaintiff s possession ever surface"

(Exhibit "C"). Those allegations do not constitute coercion, but chicanery. Therefore, plaintiff

cannot legitimately argue that Jamaica Hospital can be considered a state actor pursuant to the

state compulsion test. See Doe v. Harrison, 254 F.Supp.2d at 342.

B. Defendants' actions do not pass the public function test

Under the public function test, the plaintiff must demonstrate that the private entity

assumed powers "traditionally exclusively reserved to the State." Jackson v. Metropolitan

Edison Co., 419 U.S. 345, 352, 95 S.Ct. 449 (1974). History is extremely relevant regarding

whether a given activity was an exclusive sovereign function. Spencer v. Lee, 864 F.2d 1376,

1380-81 (7th Cir. 1989) (Historical analysis demonstrated that involuntary commitment was not

a traditional public function).

The Southern and Eastern District Courts of New York, as well as the Second Circuit

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Court of Appeals, have held in various cases that care of the mentally ill in New York was not a

function that was "traditionally" and "exclusively" reserved by the state. See OkuniejJ, 996

F.Supp. at 353-55; Sybalski v. Independent Group Home Living Program Inc., 2007 WL

1202864 at *5 (E.D.N.Y. 2007), aff'd, 2008 WL 4570642 (2nd Cir. 2008); Doe v. Harrison, 254

F.Supp.2d 338, 343 (S.D.N.Y. 2003). Therefore, the defendants' actions cannot be attributed to

the state under the public function test.

C. Plaintiffs Complaint does not sufficiently plead joint action/close nexus

Under the joint action/close nexus test, a private individual can be deemed a state actor

when there is a sufficiently close nexus between the state and the challenged action of the private

individual so that the individual's action may be fairly attributed to the State. See Jackson v.

Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449 (l974). This requirement ensures that

constitutional standards are invoked only when the State is responsible for the specific conduct

of which the plaintiff complains. Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). Actions of a

private party satisfy the nexus test only when the state government jointly participates with the

private party to deprive the plaintiff of her constitutional rights. Harvey v. Harvey, 949 F.2d

1127,1131 (l1thCir. 1992).

Based upon plaintiffs allegations in the Eight and Tenth Claims for Relief, the only test

which could arguably be applied to establish state action is the "joint action" test. Plaintiff also

specifically alleges in the Ninth Claim for Relief that Jamaica Hospital conspired with the NYlD

to violate his civil rights. As discussed in greater detail below, plaintiffs allegations are not

sufficient to establish state action on behalf of Jamaica Hospital, and therefore plaintiff cannot

state a claim for violation of his civil rights. See e.g. Spear v. Town of West Hartford, 954 F.2d

63,,68 (2d Cir. 1992); Johnson v. Columbia University, 2003 U.S.Dist.LE)(iS at *13.

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2. General Principles for Failure to State a Cause of Action

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a pleading to contain a

"short and plain statement of the claim showing that the pleader is entitled to relief." A pleading

that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action

will not do." Bell Atlantic Corp. v. Twombly, 550 D.S. 544, 555, 127 S.Ct. 1955, 1965 (2007).

A Complaint will also not be sufficient to state a cause of action if it tenders "naked assertion( s)"

devoid of "further factual enhancement." Ashcroft v. Iqbal, _U.S. at _' 129 S.Ct. 1937, 1949

(2009) (quoting Twombly, 550 U.S. at 557).

Although historically Courts were required to accept plaintiffs allegations as true when

deciding a motion to dismiss pursuant to Rule 12(b)(6) and failure to comply with Rule 8(a)(2),

the United States Supreme Court recently recognized in Iqbal that, "the tenet that a court must

accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions."

_U.S. at _' 129 S.Ct. at 1949 (emphasis added). The Court is not required to accept as true "a

legal conclusion couched as a factual allegation." _ U.S. at _' 129 S.Ct. at 1250 (citing

Twombly, 550 U.S. at 555, 127 S.Ct. at 1965).

To the extent that a Complaint contains factual allegations that are not the equivalent of

legal conclusions, the Complaint must contain sufficient factual matter that, if accepted as true,

would state a claim that is "plausible on its face" if the Complaint is to survive a motion to

dismiss. 550 U.S. at 570, 127 S.Ct. at 1974. Pleadings that are no more than conclusions are not

entitled to the assumption of truth. Luciano v. City of New York, 684 F.Supp.2d 417, 419

(S.D.N.Y. 2010), quoting Ashcroft v. Iqbal, _ U.S. at -! 129 S.Ct. at 1950. The Supreme Court

defined plausibility as follows:

A claim has facial plausibility when the plaintiff pleads factual content thatallows the court to draw the reasonable inference that the defendant is liablefor the misconduct alleged. The plausibility standard is not akin to a"probability requirement," but it asks for more than a sheer possibility that adefendant has acted unlawfully. Where a complaint pleads facts that are1506416_L.DOC 9

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"merely consistent with" a defendant's liability, it "stops short of the linebetween possibility and plausibility of 'entitlement to relief. ,,,

Iqbal_U.S. at -' 129 S.Ct. at 1949 (citations omitted). Plaintiff must allege "enough to raise a

right to relief above the speculative leveL." Twombly, _ U.S. at _' 127 S.Ct. at 1965.

3. Plaintiffs Allegations Are Insufficient Under Iqbal and Twombly

The following allegations in plaintiffs Amended Complaint are relevant to determine

whether plaintiff has adequately pled "joint action" or a conspiracy to violate plaintiffs .civil

rights:

"201. (T)he NYlD defendants maintained contact with (JamaicaHospital) for the six (6) days to ensure that plaintiff. . . remained at thehospital, and did so for the sole purpose of ensuring that (Jamaica

Hospital) continued to detain plaintiff.

202. In fact, when questioned by plaintiff about his release date,defendant ISAKOV responded that he "WANTED TO HEAR FROMTHE (POLICE) DEPARTMENT FIRST" before he could answer thatquestion and tell plaintiff when he would be released (emphasis original).

203. In allowing the NYlD to dictate the medical policy at(Jamaica Hospital). . . (Jamaica Hospital) departed from good andaccepted medical practice by unlawfully and involuntarily confiningplaintiff for six days.

204. Additionally, defendant (Jamaica Hospital), in furtherance ofits agreement with NYlD officials, explicitly and/or tacitly formed anagreement to involuntarily confine plaintiff despite objective medicalevidence mandating his release, as a 'favor' to defendant officers infurtherance of their scheme to ultimately silence plaintiff and/or otherwiseimpeach his credibility.* * *

278. Defendants conspired and acted in concert to do whateverwas necessary, lawful or not, to cause the arrest, imprisonment, and

involuntary confinement of plaintiff ADRIAN SCHOOLCRAFT."

Plaintiff s allegations are not sufficient to state a cause of action, particularly because a

complaint alleging a conspiracy to violate civil rights is held "to a heightened pleading

standards." Koulkina v. City of New York, 559 F.Supp.2d 300, 318 (S.D.N.Y. 2008), quoting

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Pollack v. Nash, 58 F.Supp.2d 294, 299 (S.D.N.Y. 1999). To state a claim for conspiracy, the

complaint must contain more than mere conclusory allegations. Koulkina, 559 F.Supp.2d at 318;

see also Dwares v. New York, 985 F.2d 94,99 (2d Cir. 1993).

Furthermore, to satisfy the joint action test while also adhering to the pleading

requirements of Iqbal and Twombly, the plaintiff must "submit factual evidence to demonstrate

'that the State had so far insinuated itself into a position of interdependence with (Jamaica

Hospital) that it was a joint participant in the enterprise." See Lewis v. Krymkevich, 2009

U.S.Dist.LE)(IS 117713 at *21-22 (S.D.N.Y. 2009), citing Jackson v. Metropolitan Edison Co.,

419 U.S. 345, 357-58, 95 S.Ct. 449 (l974). In addition, in this case, plaintiff must also submit

factual evidence demonstrating that the NYlD was "so involved" in the Jamaica Hospital staffs

decision making "that it overrides a doctor's independent, medical judgment." Lewis, at *22.

In Sasscer v. Barrios-Paoli, 2008 WL 5215466 (S.D.N.Y. 2008), the plaintiff opposed

defendants' 12(b)(6) motion to dismiss by arguing, inter alia, that the private defendant and the

state actor "acted willfully in a joint fashion" to deprive the plaintiff of her constitutional rights.

2008 WL 5215466 at *6. The Court held that "plaintiffs conclusory assertion is insufficient to

allege a conspiracy" between the private and state actors. 2008 WL 5215466 at *6. See also

Ciambriello v. County of Nassau, 292 F.3d 307 (2d Cir. 2002) (a conclusory allegation that a

private entity acted in concert with a state actor does not suffice to state a § 1983 claim against

the private entity); Bodek v. Bunis, 2007 WL 1526423 (W.D.N.Y. 2007). Plaintiffs allegations

herein are equally conclusory.

Plaintiffs allegation that the NYPD police officers spoke with Jamaica Hospital

physicians about the plaintiff is insufficient to state a cause of action. See Fisk v. Letterman, 401

F.Supp.2d 362, 337 (S.D.N.Y. 2005) (communications between a private and a state actor,

without facts supporting a concerted effort or plan between the parties, are insufficient to make

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the private party a state actor); Johns v. Home Depot u.s.A., Inc., 221 F.R.D. 400, 404 (S.D.N.Y.

2004) (a private party who calls the police is not rendered a state actor even if the call caused

plaintiff to be detained). Significantly, that principle "holds true even where, as plaintiffs assert,

the statements or testimony is false." See Bodek v. Bunis, 2007 WL 1526423 at *7; Middleton v.

City of New York, 2006 WL 1720400, *8 (E.D.N.Y. 2006).

Although plaintiff alleges that the NYlD police officers provided false information to the

Hospital physicians in order to precipitate his hospitalization, such action is not sufficient to

warrant state action. See Bodek v. Bunis, 2007 WL 1526423 at *7; Middleton v. City of New

York, 2006 WL 1720400, *8 (B.D.N.Y. 2006).

In Valez v. City of New York, 2008 WL 5329974 (S.D.N.Y. 2008), the plaintiffs landlord

provided false information to the police, resulting in his arrest and ten-day confinement. The

plaintiff sued the City and his landlords, and the landlords moved to dismiss pursuant to Rule

12(b)(6) arguing, inter alia, that they were not acting under color of state law.

The Court granted the motion. The Court examined the Second Circuit decision in

Dahlberg v. Becker, 748 F.2d 85, 92 (2d Cir. 1984), which held that in cases finding joint

activity sufficient to support deeming private activity state action, the private actors and state

agents "carried out a deliberate, previously agreed upon plan," or their activity "constitute(d) a

conspiracy or meeting of the minds." Valez at *3. The Court noted that a Complaint which

merely alleged that the private actors acted in concert was not enough; a "meeting of the minds

or intent to conspire" was necessary. Valez at *3. See also Ciambriello v. County of Nassau"

292 F.3d at 324 ("a merely conclusory allegation that a private entity acted in concert with a state

actor is not sufficient to state a § 1983 claim against the private entity"). Furthermore, providing

false information to a police officer is also not sufficient to state a claim against a private party

under §1983. Valez at *3. Even if a complainant may "stand to benefit" from an officer's

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actions, "without proof of a 'plan, prearrangement, conspiracy, custom or policy' between the

complainant and law enforcement authorities, the complainant is not acting under color of state

law." Valez at *3 (emphasis added) (citing Ginsberg v. Healey Car & Truck Leasing, Inc., 198

F.3d 268,272-73 (2d Cir. 1999)).

The Court dismissed plaintiffs complaint in Valez because the plaintiff had not alleged

any facts suggesting that the private defendants and the police had a "meeting of the minds" or

"intent to conspire," notwithstanding the allegation in the Complaint that the defendants

"conspired among themselves." Valez at *3. The Court found that plaintiffs allegations were

not sufficient to make a plausible claim that they undertook the joint activity with the police

required to state such a claim. Valez at *3. The Court also rejected the additional allegation in

plaintiffs Affidavit stating that the defendants "worked closely with the police" as too

conclusory to allege the level of joint participation required to find that the private defendants

acted under color of state law. Valez at *3.

Similarly, in Vazquez v. Combs, 2004 WL 2404224 at *5 (S.D.N.Y. 2004), the Court

noted that plaintiffs allegations of joint participation or a conspiracy were insufficient to state a

èause of action because

Plaintiff here points to no relationship between the private defendants and(the police officer), no statements made by the private defendants that theyhad special connections with the police or that they could use the police topursue their private ends.

In other words, "(t)he entire nature of the relationship between the state and the

individual alleged to be a state actor-not merely the outward manifestations of that

relationship-is to be considered." Forbes v. City of New York, 2008 WL 3539936 at *5

(S.D.N.Y. 2008). Under that analysis, plaintiffs Federal claims should be dismissed.

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POINT III

THE COURT SHOULD DECLINE TO EXERCISE SUPPLEMENTAL

JURISDICTION OVER PLAINTIFF'S STATE LAW CLAIM

If this Court dismisses the plaintiffs federal claims against Jamaica Hospital, it should

ecline to exercise supplemental jurisdiction over the plaintiff s state law claims in accordance

ith 28 U.S.c. § 1367(a) and (c)(3).

28 U.S.C. § 1367(a) provides in part:

Except as provide in subsections (b) and (c) or as expressly provided otherwise by

Federal Statute, in any civil action of which the district courts have original jurisdiction,the district courts shall have supplemental jurisdiction over all other claims that are sorelated to claims in the action within such original jurisdiction that they form part of thesame case or controversy. .. the Court may decline to exercise supplemental jurisdiction.

In Baylis v. Marriott Corp., 843 F.2d 658 (2d Cir. 1988), the Second Circuit stated that

hen all bases for federal jurisdiction have been eliminated, the federal court should dismiss the

tate claims. See also Tops Markets, Inc. v. Quality Markets, Inc., 142 F3d 90, 103 (2d Cir.

998); Morse v. University of Vermont, 973 F.2d 122, 127-28 (2d Cir. 1992); Rigano v. County

if Sullivan, 2007 WLI133280 (S.D.N.Y. 2007) (declining to exercise supplemental jurisdiction

ver the state law claims after the Court determined that none of the plaintiff s federal claims

ere sufficient to survive summary judgment); Melnitzky v. HSBC Bank USA, 2007 WL1159639

S.D.N.Y. 2007) (declining to exercise supplemental jurisdiction over remaining state claims

here pro-se plaintiffs §1983 and §1985 federal claims were dismissed); Luciano v. City of New

ork, 684 F.Supp.2d 417,422 (S.D.N.Y. 2010).

The Second Circuit Court of Appeals has upheld District Courts' decisions declining to

xercise supplemental jurisdiction over state claims after dismissing claims over which the court

ould otherwise have original jurisdiction. See Kolari v. New York Presbyterian Hospital, 455

3d 118 (2d Cir. 2006) (affirming the United States District Court, Southern District of New

ork's decision to decline the exercise of supplemental jurisdiction where plaintiff s federal law

laims were eliminated on a motion to dismiss); Tops Markets, Inc. v. Quality Markets, Inc., 142506416JDOC 14

Case 1:10-cv-06005-RWS Document 27 Filed 10/12/10 Page 19 of 20

.3d 90 (2d Cir.1998) (affirming the United States District Court, Western District of New

ork's refusal to exercise supplemental jurisdiction over plaintiffs state law claims).

If this Court dismisses plaintiff s federal claims, then it is respectfully requested that this

ourt decline to exercise supplemental jurisdiction over the plaintiff's state law claims and

ismiss those claims as welL.

CONCLUSION

For the foregoing reasons, it is respectfully requested that this Court grant defendant's

otion and dismiss the Complaint as to JAMAICA HOSPITAL MEDICAL CENTER in its

ntirety, together with such other and further relief as this Court deems just and proper.

ated: New York, New YorkOctober 12,2010

Respectfully submitted,.

MARTIN CLEARWATER & BELL LLP

Ú;Ø; /~ /BY:~WGregory J. Radomisli (GJR 2670)

Attorneys fur DerendantJAMAICA HOSPITAL MEDICAL CENTER220 East 42nd StreetNew York, NY 10017

(212) 697-3122

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